Clark v. Briscoe Irr. Co., 9588.

• Decision Date: 19 February 1947
• Docket Number: No. 9588.,9588.
• Citation: 200 S.W.2d 674
• Parties: CLARK et al. v. BRISCOE IRR. CO.
• Court: Texas Court of Appeals

200 S.W.2d 674

CLARK et al. v. BRISCOE IRR. CO.

No. 9588.

Court of Civil Appeals of Texas. Austin.

February 19, 1947.

Rehearing Denied March 5, 1947.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Action by Briscoe Irrigation Company against C. S. Clark and others for declaratory judgment or for alternative relief by mandamus and otherwise. From a judgment for plaintiff, defendants appeal.

Affirmed in part and reversed and rendered in part.

Grover Sellers, Atty. Gen., and E. M. DeGuerin, W. P. Watts and Geo. W. Barcus, Asst. Attys. Gen., James V. Allred, Vinson, Elkins, Weems & Francis and Victor W. Bouldin, all of Houston, for appellants.

Morris Jamison, of Houston, and Powell, Wirtz, Rauhut & Gideon, and Ben H. Powell, Jr., all of Austin, for appellee.

McCLENDON, Chief Justice.

This appeal is from a declaratory judgment decreeing in effect that the owner of a permit granted by the Board (Board of Water Engineers of the State of Texas) in April 1940, authorizing the appropriator (permittee) to divert from a Texas stream a specified amount of water for the purpose of irrigating specifically described land (the right to which appropriation has ripened into a title), is not required to apply to the Board for authority to substitute other lands for those designated in the permit, or to change the purpose of use of the water from irrigation to other lawful uses; the right of such appropriator being free of any regulation or control by the Board, so long as the new use is a beneficial one authorized by law, and does not (1) result in an increased appropriation or taking a greater quantity of water than authorized in the permit; or (2) impair the vested rights of other appropriators.

The correctness of this holding controls the decision of the case upon its merits.

Substantially, the facts are these:

April 6, 1940, the Board, upon his application and after due notice and hearing granted to R. T. Briscoe a permit to "divert, appropriate and use" not exceeding 75,000 acre-feet per annum of the unappropriated waters of the Brazos River, in Fort Bend County, "when beneficially used for the purpose of irrigation, mining, and municipal use." Not exceeding 50,000 acre-feet per annum of this amount was for the purpose of irrigating not exceeding 25,000 acres of land per annum out of a tract of 87,155 acres described by metes and bounds and situated in Fort Bend, Brazoria and Galveston Counties; with the further limitation of not exceeding in any one year "two acre-feet per acre for each acre actually irrigated within the 25,000 acres." This permit was later acquired by Briscoe Irrigation Company, plaintiff below and appellee here. The 25,000 acre-feet for mining and municipal purposes is not here involved as it was not put to beneficial use, and so decreed by the trial court. The 50,000 acre-feet was put to the beneficial use of irrigating the lands authorized in the permit; and the right thereto became vested under art. 7592, R.C.A. August 13, 1945, appellee filed with the Board an application to amend the permit so as to substitute other specified lands for those designated in the permit and to change the purpose of use so as to include mining, manufacturing, and municipal. After proper notice and hearing the Board denied this application on December 13, 1945. This suit was filed by appellee on January 8, 1946, against the Board and others, in which it sought the following relief:

1. A declaratory judgment decreeing that it was not required to obtain an amendment of its permit from the Board as a prerequisite:

a. To change the place of use of its waters in the manner alleged.

b. To change the purpose of use of its waters to include mining, manufacturing and municipal.

2. In the alternative, if it were held that an amendment of the permit was required, a declaratory judgment decreeing that the function of the Board was purely ministerial, with no discretion to deny the application; and that mandamus to compel approval of the amendment be awarded.

3. In the alternative, if the Board were held to have any discretion in the matter, a decree that the refusal of the Board was a gross abuse of its discretion, and that mandamus issue to compel approval of the application.

4. A decree (a) as between appellee and defendants other than the Board, and (b) as between appellee and the State that appellee has the right to extend its canal and supply its appropriated waters to irrigate the lands described in the application and for industrial and other lawful uses in or near Texas City or elsewhere in Galveston County.

5. A decree quieting appellee's vested title in its appropriated waters, and its right inherent therein to change the place and purpose of use thereof without interference from defendants, and that cloud upon its said title by reason of claims of defendants be removed.

During the course of the trial (to the court without a jury) all testimony offered by appellants in support of their contention that the Board had properly exercised whatever discretion it had in denying the application to amend the permit, was excluded upon objection of appellee's counsel upon the ground that the only issue in the case was whether appellee had the right to use the water for other beneficial purposes than those stated in the permit, and whether the Board had any discretion at all in such matters. This statement of appellee's counsel and ruling of the court eliminated from the case the alternative relief sought under paragraphs designated 2 and 3 above; and the court rendered judgment declaratory of appellee's rights as sought under paragraphs 1 and 4 above, and quieted the title of appellee as against other defendants than the Board as sought in paragraph 5 above.

No issue is raised questioning the perfection of appellee's title under art. 7592 to the use of 50,000 acre-feet of water authorized for irrigation purposes in the permit. Consequently, that portion of the decree quieting appellee's title thereto need not be considered.

Appellee's contention in support of the portion of the decree awarding the declaratory relief sought under paragraphs 1 and 4 above may be epitomized as follows:

Texas statutes governing appropriation of public waters were adopted from those of Wyoming and Nebraska and must therefore be given the same construction as had been given them by the courts of those states prior to their adoption in Texas (See Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301, 304). Under such prior holdings in those states, where the appropriation of waters authorized in a permit had ripened into a vested title, the owner of the permit had the untrammeled and unrestricted right to change the place and character of use of such waters to any lawful place and use thereof other than those designated in the permit, without the necessity of sanction of a board or other governing authority, absent (as in our statutes) an express statutory requirement for an amendment of the permit in these regards with approval of such governing authority.

The legal doctrine embodied in the first sentence of this epitomization is one of such general acceptance as to require no elaboration here. Its application in the McKnight case was stated thus: "The presumption is indulged that our Legislature was aware of the fixed judicial interpretation of the statutes in the states from which they were copied, and having been adopted, as thus construed, their validity is to be determined in the light of such construction." If, therefore, our statutes, in the respects in question, were copied from those of other states, in which, at the time of their enactment here there was a "fixed judicial interpretation" thereof in those states to the effect as contended by appellee and decreed by the court below, then it would follow that the decree in these regards is correct. Otherwise, our statutes must be construed by applying generally accepted rules of interpretation to the language employed and the objectives in view.

In an elaborate brief which evidences able, exhaustive and painstaking research, and which is most interesting and instructive, appellee's counsel have presented a learned treatise upon the origin and development of water rights law in the several western states, as gleaned from custom, statutes, adjudicated cases, standard texts, and the works of eminent specialists upon the subject. This has been most helpful in resolving the issues and reaching the conclusions essential to a proper decision in the case. We do not deem it necessary to do more than briefly summarize this origin and development, and even that only in the respects and to the extent necessary to a clear statement of the essential conclusions we have reached.

We are dealing here only with appropriated waters, consequently riparian rights are not involved and need not be discussed.

The appropriation system of water rights law seems to have had its origin in customs of the miners in some of our western states in the decade preceding the Civil War. These customs were later crystallized into statutes which authorized appropriation by giving certain notice by posting, stating the place and purpose of use of the waters. Such appropriation, when followed by the prescribed use, gave the appropriator a vested right or title, as of the date of the notice, to use of the waters thus appropriated, which was superior to that of any subsequent appropriator. This right or title was perpetual, unless lost by abandonment, was assignable, and carried with it as an incident of title, the right to change the place and purpose of use at the pleasure of the appropriator, to any lawful place or purpose of use other than that designated in the original notice. This was the generally accepted view, as expressed in statutory enactments and judicial decisions under the notice system. This view is not questioned by appellants.

The...